211 U.S.

468
29 S.Ct. 190
53 L.Ed. 286

PEOPLE OF THE STATE OF NEW YORK EX REL.

ABRAHAM KOPEL, Plff. in Err.,
v.
THEODORE A. BINGHAM, Police Commissioner of the City
of New York.
No. 167.
Argued October 26, 1908.
Decided January 4, 1909.

Mr. Alfred R. Page for plaintiff in error.

[Argument of Counsel from pages 469-470 intentionally omitted]
Messrs. Robert C. Taylor and Robert S. Johnstone for defendant in error.
[Argument of Counsel from page 471 intentionally omitted]
Mr. Chief Justice Fuller delivered the opinion of the court:

September 11, 1906, Kopel was taken into custody by defendant in error,
Bingham, who is the police commissioner of the city of New York. The arrest
was made in pursuance of a rendition warrant issued by the governor of the
state of New York, which recited that Kopel was charged with having
committed embezzlement in Porto Rico; that he had fled therefrom and taken
refuge in New York; and that his return had been lawfully demanded by the
governor of Porto Rico.

Kopel thereupon sued out a writ of habeas corpus from the supreme court of the
state of New York. Bingham made return to the writ, and set up the rendition
warrant as his authority for detaining the prisoner. Kopel demurred to the return
as insufficient in law, and that the governor's warrant had been issued without
authority, etc. The matter coming on at special term before Truax, J., the
demurrer was overruled and the writ dismissed, and the police commissioner

directed to deliver Kopel to the agent of Porto Rico, to be conveyed back to

Porto Rico.
3

From this order Kopel appealed to the appellate division of the supreme court
in the first department, and the order of Judge Truax was unanimously
affirmed.

Kopel then appealed to the court of appeals, which affirmed the order below.
The record was remitted to the supreme court, to be proceeded upon according
to law, and thereupon the order of the court of appeals was made the order of
the supreme court, whereby it was ordered that the original order of the
supreme court, which had been affirmed, should be enforced and carried into
execution and effect. To this order, upon the remittitur, this writ of error is
addressed.

The questions involved are whether the governor of Porto Rico had power and
authority to make a requisition upon the governor of the state of New York for
the arrest and surrender of the fugitive criminal of Porto Rico who had taken
refuge in the state of New York, and whether the governor of the state of New
York had power and authority to honor such requisition and to issue his
rendition warrant for the arrest and surrender of such fugitive.

Section 5278 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3597) reads as
follows:

'Whenever the executive authority of any state or territory demands any person
as a fugitive from justice, of the executive authority of any state or territory to
which such person has fled, and produces a copy of an indictment found or an
affidavit made before a magistrate of any state or territory, charging the person
demanded with having committed treason, felony, or other crimes, certified as
authentic by the governor or chief magistrate of the state or territory from
whence the person so charged has fled, it shall be the duty of the executive
authority of the state or territory to which such person has fled to cause him to
be arrested and secured, and to cause notice of the arrest to be given to the
executive authority making such demand, or to the agent of such authority
appointed to receive the fugitive, and to cause the fugitive to be delivered to
such agent when he shall appear.'

By 827 of the Code of Criminal Procedure of New York it is provided:

'It shall be the duty of the governor, in all cases where, by virtue of a requisition

made upon him by the governor of another state or territory, any citizen,
inhabitant, or temporary resident of this state is to be arrested as a fugitive from
justice . . . to issue and transmit a warrant for such purpose to the sheriff of the
proper county . . . (except in the city and county of New York, where such
warrant shall only be issued to the superintendent or any inspector of police) . . .
Before any officer to whom such warrant shall be directed or intrusted shall
deliver the person arrested into the custody of the agent or agents named in the
warrant of the governor of this state, such officer must, unless the same be
waived, as hereinafter stated, take the prisoner or prisoners before a judge of
the supreme court or a county judge, who shall, in open court, if in session,
otherwise at chambers, inform the prisoner or prisoners of the cause of his or
their arrest,' and that be or they may have a writ of habeas corpus upon filing an
affidavit to the effect that he or they are not the person or persons mentioned in
said requisition.
10

By 14 of the organic act of Porto Rico, commonly called the Foraker act, it is
provided that 'the statutory laws of the United States not locally inapplicable,
except as hereinbefore or hereinafter otherwise provided, shall have the same
force and effect in Porto Rico as in the United States, except the internal
revenue laws,' etc. 31 Stat. at L. 80, chap. 191.

11

Section 17 provides that the governor 'shall, at all times, faithfully execute the
laws, and he shall in that behalf have all the powers of governors of the
territories of the United States that are not locally inapplicable.'

12

Among the powers of governors of territories of the United States is the

authority to demand the rendition of fugitives from justice under 5278 of the
Revised Statutes, and we concur with the courts below in the conclusion that
the governor of Porto Rico has precisely the same power as that possessed by
the governor of any organized territory to issue a requisition for the return of a
fugitive criminal. People ex rel. Kopel v. Bingham, 189 N. Y. 124, 81 N. E.
773, affirming 117 App. Div. 411, 102 N. Y. Supp. 878. It was so held by
Judge Hough, of the district court of the United States for the southern district
of New York, in passing upon a similar application by the same relator. Re
Kopel, 148 Fed. 505.

13

Subdivision 2 of 2 of article 4 of the Federal Constitution refers in terms to

the states only, but the act of Congress of February 12, 1793 [1 Stat. at L. 302,
chap. 7, U. S. Comp. Stat. 1901, p. 3597], carried forward into 5278 of the
Revised Statutes, made provision for the demand and surrender of fugitives by
the governors of the territories as well as of the states; and it was long ago held
that the power to extradite fugitive criminals, as between state and territory, is

as complete as between one state and another. Ex parte Reggel, 114 U. S. 642,
650, 29 L. ed. 250, 252, 5 Sup. Ct. Rep. 1148. If 5278 does not apply, no
other statute does. And as to 14 and 17 of the Foraker act, no contention is
made that they are locally inapplicable, except as it is argued that 5278 of the
Revised Statutes is not applicable at all, because Porto Rico is not a 'territory,'
as that word is used therein. We quite agree with Judge Hough that 'to allege
that the only existing law under which a Porto Rican fugitive from justice can
be returned thereto from the United States is 'locally inapplicable' would be
making a jest of justice.'
14

It is impossible to hold that Porto Rico was not intended to have power to
reclaim fugitives from its justice, and that it was intended to be created an
asylum for fugitives from the United States.

15

In the case of Ex parte Morgan, 20 Fed. 298, 305, the question involved was
the right of the governor of Arkansas to honor a requisition for the surrender of
a fugitive criminal, received from the principal chief of the Cherokee Nation,
and the court, in holding that the governor was not authorized to honor such a
requisition, for the reason that the chief of the Cherokee Nation was not the
executive authority of any 'state' or 'territory,' inasmuch as the Cherokee Nation
or Indian territory was not an organized government, with an executive,
legislative, and judicial system of its own, but was exclusively under the
jurisdiction of the United States, defined a territory within the meaning of the
extradition statute as follows:

16

'A portion of the country not included within the limits of any state, and not yet
admitted as a state into the Union, but organized under the laws of Congress
with a separate legislature, under a territorial governor and other officers
appointed by the President and Senate of the United States.'

17

In the case of Re Lane, 135 U. S. 443, 34 L. ed. 219, 10 Sup. Ct. Rep. 760, the
accused was charged with the commission of an offense 'within that part of the
Indian territory commonly known as Oklahoma.' He was tried and convicted
upon an indictment, found under an act of Congress which excepted the
'territories' from its operation; and it was claimed that Oklahoma, which was
then a part of the Indian territory, was a territory, and came within the
exemption of the act. But the court, Miller, J., said:

18

'But we think the words 'except the territories' have reference exclusively to
that system of organized government, long existing within the United States, by
which certain regions of the country have been erected into civil governments.

These governments have an executive, a legislative, and a judicial system. They

have the powers which all these departments of government have exercised,
which are conferred upon them by act of Congress, and their legislative acts are
subject to the disapproval of the Congress of the United States. They are not, in
any sense, independent governments; they have no Senators in Congress and no
Representatives in the lower house of that body, except what are called
'Delegates,' with limited functions. Yet they exercise nearly all the powers of
government, under what are generally called 'organic acts,' passed by Congress,
conferring such powers on them. It is this class of governments, long known by
the name of 'territories,' that the act of Congress excepts from the operation of
this statute, while it extends it to all other places over which the United States
have exclusive jurisdiction.
19

'Oklahoma was not of this class of territories. It had no legislative body. It had
no government. It had no established or organized system of government for the
control of the people within its limits, as the territories of the United States
have and have always had. We are therefore of opinion that the objection taken
on this point by the sounsel for prisoner is unsound.'

20

Oklahoma was given a territorial government by the act of May 2, 1890 (26
Stat. at L. 81, chap. 182, 1).

21

In Gonzales v. Williams, 192 U. S. 15, 48 L. ed. 322, 24 Sup. Ct. Rep. 177, the
court unanimously held that a citizen of Porto Rico was not an alien immigrant,
and, among other things, an opinion of Attorney General Knox, relating to a
Porto Rican named Molinas, was quoted from as follows:

22

'He [i. e., Molinas] is also clearly a Porto Rican; that is to say, a permanent
inhabitant of that island, which was also turned over by Spain to the United
States. As his country became a domestic country, and ceased to be a foreign
country within the meaning of the tariff act above referred to [30 Stat. at L.
151, 203, chap. 11, U. S. Comp. Stat. 1901, pp. 1626, 1690], and has now been
fully organized as a country of the United States by the Foraker act, it seems to
me that he has become an American, notwithstanding such supposed omission.'

23

It may be justly asserted that Porto Rico is a completely organized territory,

although not a territory incorporated into the United States, and that there is no
reason why Porto Rico should not be held to be such a territory as is comprised
in 5278.

24

Order affirmed.